Health Care Financing Administration (Respondent) and American Federation of Government Employees, Local 1923, AFL-CIO (Charging Party/Union)

[ v56 p503 ]

56 FLRA No. 79

HEALTH CARE FINANCING ADMINISTRATION
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
(Charging Party/Union)

WA-CA-90046
WA-CA-90378

_____

DECISION AND ORDER

July 26, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with certain sanitized documents concerning the selection process that the Respondent used to fill two job vacancies for bargaining unit positions. The Judge found that the Respondent violated the Statute as charged.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision. In agreement with the Judge's conclusions, we find that the Privacy Act does not prohibit disclosure of the requested information, that the data requested by the Union was necessary within the meaning of section 7114(b)(4)(B) of the Statute, and that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute. We also adopt the Judge's recommended remedy.

II.      Background

      This case involves two information requests made by the Union to the Respondent.

A.     First request

      The Respondent issued a "Recruitment Notice" for a GS-13 position in the bargaining unit represented by the Union. The Respondent referred to this Notice as an "external recruitment," because both employees and non-employees were eligible to apply for this position. Judge's Decision at 2. A bargaining unit employee, who had applied for the position and was not selected, contacted the Union Vice President regarding the selection process because the employee believed that he should have been placed on the best qualified list.

      Subsequently, the Union Vice President requested information concerning the filling of the position, pursuant to section 7114(b)(4) of the Statute, to determine whether to file a grievance. [n1] The Union Vice President explained in his request that he was contacted by at least one employee who contended that irregularities occurred in the selection process and that the Union Vice President needed the data to "determine whether [the Respondent] misapplied and violated established merit promotion principles and procedures in the rating and ranking of applicants." Id. at 3. The Union Vice President also stated that the data was necessary for the Union to meet its representational obligations.

      The Union Vice President did not receive a response to his original request or to his second request, which essentially reiterated his original request. Further, the Union never received the requested data. [ v56 p504 ]

B.     Second request

      Later, the Respondent issued a "Recruitment Notice" for a GS-13 position in the bargaining unit represented by the Union. As was the case with respect to the Notice involved in the first request, the Respondent referred to this Notice as an "external recruitment," because both employees and non-employees were eligible to apply for this position. Id. at 4. A bargaining unit employee, who had applied for the position and was not selected, contacted the Union Vice President regarding the selection process. The employee stated that "something had gone wrong with the selection process," and that she had not received "proper credit" for her application material. Id.

      Thereafter, the Union Vice President submitted a data request identical to the first request, pursuant to 7114(b)(4) of the Statute, in order to determine whether to file a grievance. The Union Vice President gave the same explanation used for the first request. The Respondent, in a letter dated approximately 7 weeks after the request and 1 month after the Union filed the unfair labor practice charge, refused to provide the requested data on the ground that the Union had not "articulated a particularized need" and "not demonstrated any connection to its representational responsibilities under the Statute." Exceptions at 1-2, Exhibit 8 to Exceptions.

      The General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to provide the Union with the requested information.

III.     The Judge's Decision

      The Judge first determined that, under section 7114(b) of the Statute, the information requested by the Union "was normally maintained by [the Respondent], was reasonably available to [the Respondent], and did not constitute guidance, advice or counsel provided for management officials relating to collective bargaining." Judge's Decision at 7. The Judge stated that the issues were whether: (1) the data is necessary for the Union to perform its representational duties; (2) the Union articulated its need for the requested data with sufficient particularity; and (3) the Respondent established any reasons prohibiting the disclosure of the information.

      The Judge determined that the information requested by the Union is necessary for the Union to perform its representational duties. The Judge found that, without the requested data, the Union could not: (1) assess whether the employees who sought Union assistance were minimally qualified for the vacant position; (2) determine whether the rating and ranking factors were applied uniformly; (3) determine whether merit principles, policies, and procedures were followed in a fair and equitable manner; (4) compare the applicants, and the credit they received for each KSA; and (5) learn what guidance the selecting official relied on in determining how applicants should be rated and ranked, and what was used to establish the selection certificate.

      The Judge also determined that the Union articulated its need for the requested data with sufficient particularity under the Authority's framework set forth in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661, 669-70 (1995) (IRS, Kansas City). The Judge found that the requests both explained the need for the data and "unambiguously connected" this intended use with the Union's representational responsibilities under the Statute. Judge's Decision at 11.

      The Judge then addressed the Respondent's defenses that:  (1) the Privacy Act, 5 U.S.C. § 552a, bars the disclosure of data; and (2) matters related to the external recruitment process are not connected to the Union's representational responsibilities. With respect to both of the Respondent's defenses, the Judge found that the Respondent's failure to raise its arguments when the requests were made foreclosed the Respondent from doing so for the first time at the hearing. In making this determination, the Judge relied on the Authority's decision in Federal Aviation Administration, 55 FLRA 254, 260 (1999) (FAA).

      The Judge also found that the Respondent's defenses lacked merit. With respect to the Respondent's assertion that the Privacy Act bars disclosure of the requested data, the Judge cited the Authority's framework for addressing such claims set forth in U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 345 (1995) (TRACON). The Judge found that the Union had specifically requested the data in sanitized form in order to avoid any Privacy Act implications and that several of the requested documents did not include any items that raise privacy concerns. The Judge thus concluded that the Privacy Act did not prohibit the Respondent from providing the requested data.

      With respect to the Respondent's assertion that matters related to the external recruitment process are not connected to the Union's representational responsibilities, the Judge found that certain provisions of the Master Labor Agreement pertain to the external recruitment [ v56 p505 ] process. Judge's Decision at 14 (citing Master Labor Agreement Appendix I to Article 3, and Article 26, sections 6.A, 9.A.1.b.). The Judge determined that, even though external hiring was conducted pursuant to an Interagency Agreement with Office of Personnel Management (OPM), the Respondent acknowledged that it "acts for itself, not OPM, when considering applicants under this delegated authority." Judge's Decision at 15; see also Interagency Agreement at I.E.2.b., p.3. The Judge also found that the Interagency Agreement did not preclude the disclosure of the requested data because the agreement states that "the [Respondent] shall . . . [r]espond to correspondence/inquires" and "is ultimately responsible for [the] decision about the release of examining information." Judge's Decision at 15 (quoting Interagency Agreement at I.E.2.b., p.3; Section 9.3).

      Based on the foregoing, the Judge found that the Respondent violated sections 7116(a)(1), (5) and (8) of the Statute. The Judge recommended that the Authority require the Respondent to furnish the Union with the requested information in sanitized form. The Judge also recommended, in response to the Union's request, that the Authority preclude the Respondent from raising timeliness as a defense in any subsequent grievance and/or arbitration filed in connection with the disputed vacancy announcements so long as the grievance is timely filed from the date the Union receives the requested information. The Judge noted that the Respondent conceded that it had the authority to waive any timeliness defense in a grievance. According to the Judge, failure to implement this remedy would permit the Respondent to benefit from its own misconduct.

IV.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent argues that the Judge erred in concluding that the Respondent is prohibited from raising countervailing interests to the disclosure of data for the first time at the hearing. In particular, the Respondent contends that the Privacy Act cannot be violated merely because the Respondent did not raise it as a defense until the hearing.

      The Respondent claims that the Privacy Act prohibits disclosure of the requested information and that the Judge incorrectly found that there were no Privacy Act implications because the Union had requested the information in sanitized form. The Respondent contends, in particular, that the Privacy Act does not contain any provision for the release of sanitized records. The Respondent relies on the Authority's decision in Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166 (1996) (IRS, Austin). Further, the Respondent claims that the Union did not articulate a public interest that would outweigh the privacy interests in the requested information.

      The Respondent also contends that the Judge erred in concluding that the Union established a particularized need for the information it requested. The Respondent claims that the Union's requests for data: (1) failed to contain the specificity required by the particularized need standard and (2) concerned a matter that was outside the scope of collective bargaining, the external recruitment process.

      Finally, the Respondent argues that there is no legal authority for the Judge's recommended order to extend the time limits for filing a grievance beyond what parties bargain for in their collective bargaining agreement. According to the Respondent, the exclusive provisions for the time limits for filing a grievance are contained in the parties' agreement.

B.     General Counsel's Opposition

      The General Counsel claims that the Judge correctly found that the Respondent was foreclosed from raising its countervailing interests for the first time at the hearing. Regarding the Respondent's argument that the Privacy Act was violated, the General Counsel contends that the Respondent did not meet its burden under TRACON, and that privacy interests generally are not implicated in a request for sanitized documents.

      The General Counsel also contends that the Union's requests established a particularized need for the requested data because the requests: (1) stated that the Union needed the data to determine whether the Respondent had misapplied and/or violated established merit principles, policies and procedures in the rating and ranking of applicants; and (2) connected this intended use with the Union's representational responsibilities of determining whether to file a grievance on behalf of the complaining employees.

      The General Counsel contends that the Judge correctly ordered the Respondent to refrain from alleging that any subsequent grievance in connection with the vacancy announcements is untimely. The General Counsel asserts that the Authority has held that Judges have broad remedial powers and that this remedy "recreate[s] conditions prior to the Respondent's violative conduct." Opposition at 18 n.13. [ v56 p506 ]

V.     Analysis and Conclusions

      Under section 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) normally maintained by the agency; (2) reasonably available; (3) necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (4) not guidance, advice, counsel or training. Two of these aspects are in dispute here: whether disclosure of the information is prohibited by law and whether the information is necessary.

A.     The Judge properly concluded that disclosure of the information requested by the Union is not prohibited by the Privacy Act.

      In TRACON, which involved the disclosure of performance appraisals of bargaining unit employees, the Authority set forth the analytical approach it follows in assessing an agency's claim that disclosure of information requested under section 7114(b)(4) of the Statute would violate the Privacy Act. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Exemption 6 of the FOIA provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA.

      There is no dispute that the requested information in this case would be sanitized to protect the privacy interests of affected individuals. Although the Respondent argues that the Privacy Act does not contain any provision for the release of sanitized records, see Exceptions at 10, citing IRS, Austin, 51 FLRA 1166, the redaction of documents to permit disclosure of nonexempt portions is appropriate under Exemption 6. See Department of Air Force v. Rose, 425 U.S. 352, 374 (1976) (Rose); see also United States Department of State v. Ray, 112 S. Ct. 541, 547 (1991) (Court held that redaction procedure is "expressly authorized by FOIA"). Further, the court in Rose found that the request for sanitized information "respected the confidentiality interests embodied in Exemption 6." Rose, 425 U.S. at 380. Here, because identifying information would be redacted, there would be no unwarranted invasion of privacy under Exemption 6. Thus, the information would be required to be disclosed under the FOIA, and the Privacy Act would not prohibit its release.

      The Authority decision relied on by the Respondent does not undermine this conclusion. The tax record information at issue in that case is specifically exempted from disclosure in the Privacy Act, under section 552a(b)(3), even when sanitized. See IRS, Austin, 51 FLRA at 1175. Here, the data requested by the Union is not protected from disclosure by the Privacy Act. See TRACON, 50 FLRA at 345. Therefore, as the Respondent has failed to show that disclosure would implicate a privacy interest, we find that the Privacy Act does not prohibit the disclosure of the requested information. [n2] 

B.     The Judge properly concluded that the Union articulated a particularized need for the requested information.

1.     The Union articulated its need with requisite specificity.

      To demonstrate that information is "necessary," a union "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Kansas City, 50 FLRA at 669 (footnote omitted). Further, the union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670.

      The Respondent argues that the Union's two requests for information did not contain the specificity required by IRS, Kansas City. In particular, the Respondent asserts that the Union's requests contain nothing more than "bare and conclusory assertions" that the information would establish that the Respondent misapplied and/or violated established merit promotion policies and procedures in the rating and ranking of applications. Exceptions at 12.

      We reject the Respondent's argument. The Union's requests referred to specific vacancy announcements and clearly informed the Respondent that the Union [ v56 p507 ] needed the information for two reasons: (1) to determine whether the Respondent had misapplied and/or violated established merit principles, policies and procedures in the rating and ranking of applicants under the vacancy announcements; and (2) to determine whether or not to file a grievance on behalf of the complaining employees. See Joint Exhibit No. 2; Respondent's Exhibit No. 4. The Union also explained, in both requests, that bargaining unit employees believed that they had not been given fair and proper consideration for the vacancy announcements. Although the Union did not explain exactly how the requested documents would enable it to decide whether or not to file a grievance, a union's request for information "need not be so specific" as "to reveal its strategies." IRS, Kansas City, 50 FLRA at 670 n.13; see also Health Care Financing Administration, 56 FLRA 156, 162 (2000) (HCFA) (union not required to describe exact nature of respondent's alleged misapplication or violation of policy/procedure, law or regulation).

      We conclude that the Union provided sufficient information for the Respondent to make a reasoned judgment concerning disclosure. [n3] As such, we find that the Judge properly found that the Union sufficiently articulated its need for the requested information.

2.     The Union's statement of need related to its representational responsibilities.

      The Authority has held generally that the scope of the information entitlement under section 7114(b)(4) of the Statute "extends to the full range of representational activity, not just the context of pending negotiations between labor and management." FAA, 55 FLRA at 258. Moreover, the Authority recently decided, in a case virtually identical to this one, that the external recruitment process used by the Respondent to fill vacant positions for which bargaining unit employees are eligible concerns the working conditions of those employees and is an appropriate subject of an information request. See HCFA, 56 FLRA at 160-61. Consistent with HCFA, we find that the Judge properly concluded that the Union's request for information is related to its representational responsibilities.

C.     The Judge's recommended remedy is proper.

      As one remedy for the violation, the Judge ordered the Respondent to refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with the vacancy announcements, that the grievance is untimely.

      In F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 160-62 (1996) (Warren), the Authority discussed its approach to evaluating requests for nontraditional remedies, and concluded that such remedies must satisfy the same broad objectives that the Authority described in United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444-45 (1990) (DOJ). "That is, assuming that there [are] no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to 'recreate the conditions and relationships' with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct." Warren, 52 FLRA at 161 (quoting DOJ, 35 FLRA at 444-45).

      The Respondent has not raised any legal or public policy objections to the remedy, other then stating that there is no "legal authority" for the Judge's recommended order to extend the time limits for filing a grievance over any of the matters related to the disputed vacancy announcements. Exceptions at 16-17. However, the Respondent conceded before the Judge that it has the authority to agree to a waiver of any timeliness defense in a grievance. Judge's Decision at 16. Although the Union could have filed a grievance without the requested information, the release of the requested information would have enabled the Union to make this decision in an informed manner. Thus, the Judge's recommended remedy effectively recreates the conditions that would have existed had there been no unfair labor practice. As such, we find the remedy appropriate under Warren.

VI.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Health Care Financing Administration, shall:

      1.     Cease and desist from:

           (a)     Failing and refusing to reply to requests for data from the American Federation of Government Employees, Local 1923, AFL-CIO (Local 1923), the employees' exclusive representative, which reply is necessary [ v56 p508 ] for a full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

           (b)     Failing and refusing to furnish Local 1923 with data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

           (c)     Failing and refusing to furnish Local 1923 with data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

           (d)     In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Furnish Local 1923, the data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

           (b)     Furnish Local 1923, the data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

           (c)     Refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with Vacancy Announcements RN-98-079C and RN-99-016, that the grievance is untimely, as long as the grievance is timely filed from the date Local 1923, receives the requested information.

           (d)     Post at its facilities where bargaining unit employees represented by Local 1923 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chairman of the Health Care Financing Administration, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (e)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Health Care Financing Administration has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to reply to requests for data from the American Federation of Government Employees, Local 1923, AFL-CIO (Local 1923), the employees' exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

WE WILL NOT fail and refuse to furnish Local 1923, data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

WE WILL NOT fail and refuse to furnish Local 1923, data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish Local 1923, all the data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

WE WILL furnish Local 1923, all the data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

WE WILL refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with Vacancy Announcements RN-98-079C and RN-99-016, that the grievance is untimely, as long as the grievance is timely filed from the date Local 1923, receives the requested information.

      _____________________

      (Activity)

Dated:__________ By:_____________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: TechWorld Plaza, 800 "K" Street, NW., Suite 910, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700.


File 1: Authority's Decision in 56 FLRA No. 79
File 2: ALJ's Decision


Footnote # 1 for 56 FLRA No. 79 - Authority's Decision

   Specifically, the Union asked for an official copy of the following data in sanitized form:

(1)     the recruitment announcement;
(2)     the position description;
(3)     the related "knowledge, skills, and abilities," task examples, and any other rating and criteria;
(4)     the rating and ranking worksheet and scores of each applicant;
(5)     the selection certificate;
(6)     the applications of all candidates; and
(7)     the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

Judge's Decision at 3.


Footnote # 2 for 56 FLRA No. 79 - Authority's Decision

   In view of our determination, we do not address whether the Respondent was precluded from raising the Privacy Act defense for the first time at the hearing. We note, however, that it appears clear that an agency cannot waive the Privacy Act rights of its employees regarding the release of personal information. See 5 U.S.C. § 552a(g)(1)(D) (employee authorized to bring private civil action against agen